DOUGLAS, J., dissenting. We adopt the following opinion in this case prepared by the late Chief Justice FAIRCLOTH:
This is an action to recover damages for killing Julius Hargrove. The plaintiff's intestate was a flagman, or brakeman, on defendant's work train, and was an old railroad man and knew the rules of railroads as to the passing of trains. The conductor of the work train stationed plaintiff's intestate at a *Page 386 point between Elmwood and the work train, to hear the freight train blow and to signal the work train out of the way of the freight train. The signal was given, and as the work train went out the conductor said to him, "Stay here until I return; will follow 74 (freight train) right back." The intestate knew and expected that train 74 would come by as soon as the work train was out of the way. He was then awake, sober and in his right mind. Three hundred yards above the place where the intestate was injured, the freight train stopped to "fix a log" and could be seen that distance. The intestate was sitting on a crosstie asleep within a few inches of the iron rail. As the engineer of train 74 approached and saw a person sitting on the crosstie, he assumed that he would get off, but, on nearer approach, seeing that the person did not move, he gave the alarm signal by sounding the whistle, ringing the bell, and applying the brakes. The intestate was struck by the freight train, injured, and died soon afterwards.
When the conductor saw that the intestate did not move, it was too late to stop before passing the intestate.
The defendant introduced no evidence, and when the plaintiff closed, his Honor intimated that the plaintiff could not recover, and a nonsuit and appeal were taken.
In this and like cases the plaintiff's evidence is taken as true. The rule on this subject has been so frequently and (519) recently expressed by this Court that repetition seems to be superfluous work. However, in Norwood v. R. R.,111 N.C. 240, the Court said: "When he placed himself in a position where he was liable to be stricken by a passing engine, it was his duty to keep a sharp lookout, and if he carelessly, recklessly and in a drunken stupor remained on the track when the engine was approaching, and till it came in contact with him, he was negligent. * * * If it were conceded that the engineer saw the deceased walking along the track, or sitting upright on the end of a crosstie, in time to have stopped the train without peril or difficulty, he was justified in believing, up to the last moment, in the absence of knowledge or information, that he was insane or deaf, that the intestate would take reasonable precaution for his own safety by moving out of the way" — citing other decisions to the same effect, which decisions have been followed ever since.
In Wycoff v. R. R., 126 N.C. 1152, the facts were not identical, but were similar and presented the same question. The plaintiff testified that he, being wearied, stepped off and sat on the end of a crosstie to rest a few minutes, and while sitting there he dropped off to sleep and was knocked senseless by a *Page 387 passing train. The Court affirmed per curiam the nonsuit on the authority of Norwood's case, supra.
Affirmed.